Navigating the Complex Asset Pool in Family Law Property Settlements – recorded online conference

Session 1: Enlarging the Asset Pool: The Treatment of Addbacks in Property Settlements

The task of constructing a balance sheet is rarely easy. This session explores the adding back of notional assets into the pool of property available for division between separated parties. It covers:

• The Court’s current approach to addbacks
• Where the parties have expended money on legal fees
• Premature distribution of matrimonial assets
• Waste of matrimonial assets
• Intersection between addbacks and Stanford principles

Session 2: The Role of Digital Assets in Property Settlements

It was unlikely to have been in contemplation at the time the Family Law Act was drafted that it would one day need to deal with cryptocurrency, non-fungible tokens and other digital assets. It is now estimated that approximately five million Australians own cryptocurrency, with that number on the rise. Digital assets are therefore not only here to stay but will become more common in family law over the next few decades. This session will help family lawyers understand and navigate digital assets during property settlements, including:

• Different types of cryptocurrency assets - what they are and how they work, including crypto wallets, staking, and smart contracts
• DeFi (decentralised finance) - how it operates, what to do if digital assets are locked up in a DeFi process and when to seek specialist advice (and from who)
• What questions to ask of your client or the other party to identify digital assets and other intangibles
• How digital assets are valued and evidentiary issues and limitations
• Steps to take if you suspect the other party owns digital assets which have not been declared
• Spotlight on social media followings and influencers – the impact on property settlements

Session 3: Alive and well: The Presumption of Advancement Post-Bosanac

The presumption of advancement effectively presumes that a gift of property or contributions to the purchase price of a property are intended to be gifts when they are made in the context of family relationships. The presumption had been regarded by some as out of date. However, in the High Court decision of Bosanac, the Court rejected that argument, making it clear that the rule of ‘presumption of advancement’ is indeed alive and well and therefore an issue that will continue to arise in family law property settlements. This session will explore: 

• The facts, arguments, and ultimate reason for decision in Bosanac; 
• The guidance provided by the High Court as to when a voluntary transfer of property may lead to the imposition of a resulting trust 
• How a resulting trust may impact family law property settlement proceedings
• Common situations where the presumption of advancement or resulting trust arise in family law matters   
• The potential legal and taxation consequences where a resulting trust does arise for all relevant family law parties